Driver appeals conviction

Last modified: 4/12/2012 12:00:00 AM
In a move that could clarify what's a mere accident and what's a crime when someone is hit by a car, a Franklin woman found guilty of negligent homicide in July has appealed her conviction to the New Hampshire Supreme Court.

Lynn Dion, 44, was convicted after hitting two pedestrians, one of them fatally, in June 2009 with her Toyota Corolla. Prosecutors argued at her trial that she was on the phone at the time of the accident. Her attorneys denied the allegations and countered that even if Dion were on the phone at the time, that doesn't rise to the level of a Class B felony.

The argument could soon be replayed at the state's highest court.

'People are on their phones every day, and they have no expectation for believing, if they hit someone while they're on their phone . . . that they could face jail time for it,' said Allison Ambrose, one of Dion's attorneys.

Dion was sentenced in October to 1« to three years in prison. Citing Dion's otherwise clean record, Judge Kenneth Brown said she could keep her license and remain free until the appeals process was over.

On June 28, 2009, about 9 p.m., Dion drove south on North Main Street in Franklin, turned left onto Central Street, crossed the bridge and hit two women - Genny Basset, then 36 and a mother of four, and Elsa Gonella. It was dark, but her lights were functioning.

Basset spent more than three weeks at Dartmouth-Hitchcock Medical Center before her family removed her from life support.

For Dion to be convicted, the jury had to believe that she had not become aware of a 'substantial and unjustifiable risk' on the night of the accident and that her failure was a 'gross deviation' from what a reasonable person would have done.

Dion was not speeding or under the influence of drugs or alcohol when she was driving about 30 mph and failed to hit the brakes until after she had run over two people. She had, however, had extensive conversations on her cell phone in the half-hour drive leading up to the accident.

In the appeal, Dion's attorney also argues that evidence of Dion's cell phone conversations prior to the accident should not have been admitted at the trial because they weren't relevant to the call that took place at or around the time of the accident and therefore prejudiced the jury against her. The prosecution argued at the time that the prior calls showed that Dion was more preoccupied with her conversations than with the road.

Prosecutors have been hoping for more guidance on what specifically constitutes negligent homicide after a 2009 state Supreme Court ruling overturned the conviction of Joshua Shepard.

Shepard, like Dion, was not under the influence or speeding when he swerved into oncoming traffic and killed three motorcyclists.

In the ruling, the court said Shepard's car 'inexplicably drifted over the double yellow line and into oncoming traffic for no more than two seconds.' The act might have been negligent, the court said, but not criminally so.

Prosecutors have had mixed results since. For example, a month before Dion was convicted, a Merrimack County jury acquitted a Loudon woman who rear-ended a car and killed its driver after she reached for a soda can.

Ambrose said Shepard was a particularly important decision for Dion's case.

'Shepard really made clear that you really have to have that blameworthy conduct,' she said.

Dion's appeal argues that the state, which did not enter evidence showing a direct connection between cell phone use and dangerous driving, failed to meet that threshold.

The New Hampshire attorney general's office, which did not respond to requests for comment, has until early June to respond to the appeal.

Dion's attorneys asked for her conviction to be changed to an acquittal or be sent back to the court and hope for more clarity for cases going forward.

'There's a line,' Ambrose said. 'But nobody knows where that line is, and that's what we're sort of hoping to resolve.'

(Molly A.K. Connors can be reached at 369-3319 or mconnors@cmonitor.com.)




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